"(1) A party to any proceeding before the Public Utility Commission,
when aggrieved by any findings of fact, conclusions of law or order,
including the dismissal of any complaint or application by the commission,
may prosecute a suit against the commission to modify, vacate or set aside
such findings of fact, conclusions of law or order.

"(2) Such suit may be commenced by any party so aggrieved in the
Circuit Court for Marion County, in the circuit court for the county in
which any hearing has been held in the proceeding in which the order was
made, or in the circuit court for the county in which is located the principal
office of any defendant in any such proceeding before the commission, and
jurisdiction of any such suit hereby is conferred upon the circuit court for
any of such counties to hear and determine such suit." (Emphasis
supplied.)

The circuit court's jurisdiction, thus, is to review the "findings of fact, conclusions of law
or order" that the plaintiff identifies in its complaint as the things that aggrieve it. We
therefore look to OEC's complaint to determine whether it properly invoked the circuit
court's jurisdiction under the statute.

OEC filed this action on August 11, 1998. In the first paragraph of its
complaint, it identified the order for which it sought judicial review and some of the
issues on which it intended to rely:

"This is an action pursuant to ORS 756.580 for judicial review of
Order No. 98-238 and the interlocutory orders which preceded it including
96-137 and the 'memorandum' ruling that followed it. A true copy of Order
98-238 is attached as Exhibit A. In that Order, the Commission denied
OEC's motion for reconsideration and in so doing denied OEC's [sic] its
due process rights. The Commission's decision is not based upon
substantial evidence and improperly discriminates against OEC."

OEC did not in fact attach Order 98-238 or any other PUC order to the complaint. In
paragraph 20 of the complaint, OEC described a number of ways in which, it asserted,
Order 98-238 was defective. The complaint does not expressly refer to Order 98-055 or
to any defects in it. Thus, the only order that OEC brought before the circuit court was
Order 98-238. Although the PUC further explained its reasoning in that order, the only
thing that Order 98-238 actually did was to adhere to the decision that the PUC had
reached in Order 98-055, leaving that order in effect. The jurisdictional issue is whether,
by seeking review of Order 98-238, OEC gave the trial court jurisdiction over the PUC's
dispositive "findings of fact, conclusions of law, or order."

ORS 756.580(1) requires that, before an order can be reviewable, the PUC
must take some action--find a fact, make a legal conclusion, or order someone to engage
in some specific conduct. That requirement is consistent with the usual rule that a court
hearing an appeal or otherwise reviewing a lower body's actions normally has jurisdiction
only over the lower body's final action. Although this often means that a party must wait
for the final action before seeking review, it also means that a decision refusing to change
a previous final action is not a subject for appeal. Thus, an order denying a motion to set
aside or vacate an existing judgment and grant a new trial is not an appealable order, and
an order denying a motion to set aside or vacate a final administrative decision is not
subject to judicial review. SeeUnemployment Comp. Com. v. Bates, 227 Or 357, 362 P2d
(1961); Cruz v. Board of Parole, 53 Or App 263, 631 P2d 829, rev den 291 Or 893
(1981).

It was essential to the circuit court's jurisdiction under ORS 756.580 that
OEC expressly describe the PUC's "findings of fact, conclusions of law or order" by
which OEC claimed that it was aggrieved. In that way, OEC would have identified the
PUC finding, conclusion, or order that the circuit court had jurisdiction to review. To
give the trial court jurisdiction, OEC had to identify the challenged order in the
complaint, and that order had to be subject to judicial review under the statute. That
requirement is comparable to the rule that, in order to confer jurisdiction on an appellate
court, the notice of appeal must identify the judgment being appealed and that judgment
must be appealable. Thus, a notice of appeal from an order denying a motion for
judgment notwithstanding the verdict is insufficient to give the appellate court
jurisdiction over the original judgment. Stahl v. Krasowski, 281 Or 33, 573 P2d 309
(1978).

In its complaint, OEC also stated that it sought review of the interlocutory
orders that preceded Order 98-238. (6) That statement appears to reflect the general rule that
an appeal from a final judgment permits the appellate court to review all of the
intermediate orders that preceded it. See ORS 19.425. Assuming that that approach
applies to PUC cases, Order 98-055 was not an interlocutory order. Rather, it was the
order in which the PUC disposed of the case on the merits. It was comparable to a final
judgment in a judicial proceeding or a final order in a contested case under the
Administrative Procedures Act, ORS 183.310 to 183.550. As we have discussed, it is not
possible to gain appellate review of those decisions by appealing or seeking review of
orders denying reconsideration of the final decision.

ORS 756.528 does give a party a choice of when to seek review of certain
PUC orders:

"At any time before the conclusion of the taking of evidence in a
proceeding, the Public Utility Commission may segregate the issues
involved and order separate hearings thereon at such times and places as
the commission may prescribe. The commission may issue interim orders
on any such issues, but any such interim order is subject to judicial review
in the manner prescribed in ORS 756.580 to 756.610 without awaiting
determination of any of the other issues involved in the proceeding. Failure
to seek judicial review of an interim order does not waive the right to seek
such review following [the] final order."

Under this statute, the PUC may segregate the issues in a case for separate hearings and
render a series of interim orders. When it does so, the parties may choose either to seek
judicial review of one or more interim orders separately or to wait until the conclusion of
the proceeding to seek review of all of the orders. In this case, however, the PUC did not
segregate the issues for a series of hearings and orders. In Order 98-055, it resolved the
entire case on cross-motions for summary disposition. That order was a final order, not
an interim order of the kind that ORS 756.528 contemplates. The statute thus does not
modify the normal rule that seeking judicial review of an order denying reconsideration
does not bring the original dispositive order before the court.

Because OEC's complaint did not give the circuit court jurisdiction over
Order 98-055, and because the only issues that OEC raises concerning Order 98-238 are
issues that the PUC resolved in Order 98-055, the circuit court did not have jurisdiction
over this case.

Judgment vacated; remanded with instructions to dismiss for lack of subject
matter jurisdiction.

1. Plaintiff points out that PGE, but not the PUC, raised the jurisdictional issue
in its brief. It argues that the PUC therefore waived that issue. Because the question
affects the trial court's subject matter jurisdiction, it is not waivable. SeeLeanord v.
Jackson Co. Rural Fire Dist. No. 3, 71 Or App 249, 254, 692 P2d 141 (1984).

2. In seeking summary disposition of the case, PGE relied on three grounds to
support its position on the merits. In Order 98-055 the PUC discussed and agreed with all
three. Nevertheless, the order included the following sentence: "Because we resolve the
dispute on the basis of the first issue, we do not discuss the second and third reasons
listed above." In Order 98-238 the PUC deleted that sentence from Order 98-055.

3. Under ORS 756.561(2), a party that seeks reconsideration of a PUC order
must comply with that order pending the decision on reconsideration unless the PUC
specifically orders otherwise. There was no such order in this case. Thus, Order 98-055
remained the effective order at all times after its entry.

6. The only supposedly interlocutory PUC order to which OEC specifically
referred was Order 96-137. However, the PUC entered that order in a different
proceeding, and it was subject to judicial review on its entry. It was not an interlocutory
order in this case.